Citation Nr: 9926990
Decision Date: 09/21/99 Archive Date: 09/28/99
DOCKET NO. 97-13 156A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Fort
Harrison, Montana
THE ISSUE
Entitlement to an effective date earlier than April 11, 1996,
for the grant of a 100 percent disability evaluation for
post-traumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active military service from February 1968 to
December 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 1996 rating determination
of the Fort Harrison Department of Veterans Affairs (VA)
Regional Office (RO), which granted a 100 percent evaluation
for PTSD, effective April 11, 1996.
REMAND
The Board observes that the assignment of effective dates for
increased disability evaluations is governed by 38 U.S.C.A.
§ 5110 (West 1991) and 38 C.F.R. § 3.400 (1998). The statute
provides, in pertinent part, that:
(a) Unless specifically provided
otherwise in this chapter, the effective
date of an award based on an original
claim, a claim reopened after final
adjudication, or a claim for increase, of
compensation, dependency and indemnity
compensation, or pension, shall be fixed
in accordance with the facts found, but
shall not be earlier than the date of
receipt of application therefor.
(b)(2) The effective date of an award of
increased compensation shall be the
earliest date as of which it is
ascertainable that an increase in
disability had occurred, if application
is received within one year from such
date.
38 U.S.C.A. § 5110 (West 1991).
The pertinent provisions of 38 C.F.R. § 3.400 clarify that:
Except as otherwise provided, the
effective date of an evaluation and award
of pension, compensation or dependency
and indemnity compensation based on an
original claim, a claim reopened after
final disallowance, or a claim for
increase will be the date of receipt of
the claim or the date entitlement arose,
whichever is the later.
(1) General. Except as provided in
paragraph (o)(2) of this section and Sec.
3.401(b), date of receipt of claim or
date entitlement arose, whichever is
later. A retroactive increase or
additional benefit will not be awarded
after basic entitlement has been
terminated, such as by severance of
service connection.
(2) Disability compensation. Earliest
date as of which it is factually
ascertainable that an increase in
disability had occurred if claim is
received within 1 year from such date
otherwise, date of receipt of claim.
38 C.F.R. § 3.400(o).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court") and the VA General
Counsel have interpreted the applicable laws and regulations
as meaning that if the increase occurred within one year
prior to the claim, the increase is effective as of the date
the increase was "factually ascertainable." If the
increase occurred more than one year prior to the claim, the
increase is effective the date of claim. If the increase
occurred after the date of claim, the effective date is the
date of increase. 38 U.S.C.A. 5110(b)(2); Harper v. Brown,
10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2);
VAOPGCPREC 12-98 (1998).
On VA examination in January 1995, the veteran reported that
during the previous six months he had received treatment for
PTSD at a VA facility and from "Tony Rizza." These records
have not been made a part of the claims folder, although they
could show that an increase in disability was factually
ascertainable, and the VA records could serve as the basis
for an earlier informal claim for increase. 38 C.F.R.
§ 3.157 (1998). The Board further notes that under Bell v.
Derwinski, 2 Vet. App. 611 (1992), VA is deemed to have
constructive knowledge of certain documents which are
generated by VA agents or employees, including VA physicians.
Id. at 612-13. If those documents predate a Board decision
on appeal, are within VA's control, and could reasonably be
expected to be part of the record, then "such documents are,
in contemplation of law, before the Secretary and the Board
and should be included in the record." Id. at 613. If such
material could be determinative of the claim, a remand for
readjudication is in order. Dunn v. West, 11 Vet. App. 462,
466 (1998).
In view of the foregoing, this case is REMANDED for the
following development:
1. The RO should take all necessary
steps to obtain all records of the
veteran's treatment for PTSD prior to
January 1995, including records of the
treatment reported on the January 1995 VA
examination, and all records pertaining
to any claims for Social Security
disability benefits. Any records so
obtained, and not currently part of the
claims folder, should be associated with
that folder.
2. The RO should than readjudicate the
veteran's claim for an earlier effective
date for the grant of a 100 percent
evaluation for PTSD in accordance with
the Court's decision in Harper, and 38
C.F.R. § 3.400(o).
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).